Yong Pung HowCJ in Tribune Investment Trust Inc v Soosan Trading Co Ltd [2000] 3 SLR 405 at [40] opined: [T]he function of the court is to try as far as practical experience allows, to ensure that the reasonable expectations of honest men are not disappointed. It was listed at the price of $66, when it was advertised on the official HP website for $3,854. This is essentially a matter of language and intention, objectively ascertained. His communications with the fifth plaintiff, a lawyer, on the efficacy of the terms and conditions also lead to the ineluctable conclusion that he harboured anxieties whether this astoundingly good deal would be honoured when the error was discovered. In the High Court, the learned judge ("the Judge") decided, in the main, in favour of the Purchaser. He worked in an accounting firm, Ernst and Young, for three years. A court will not enforce the plaintiffs purported contracts even if they are not void. Disclaimer: This work was produced by one of our expert legal writers, as a learning aid to help law students with their studies. Secondly, widening the scope of mistake, unilateral or otherwise, under the rubric of equitable mistake will, with its malleability, only encourage uncertainty and litigation. Notwithstanding some real differences with posting, it could be argued cogently that the postal rule should apply to e-mail acceptances; in other words, that the acceptance is made the instant the offer is sent. There is therefore no pre-condition in law for a mistaken party to show an absence of carelessness to avail himself of this defence; the law precludes a person from seeking to gain an advantage improperly in such circumstances. They are not entitled to the costs of the subsequent brief hearing, for reasons I now deal with summarily. As with any normal contract, Internet merchants have to be cautious how they present an advertisement, since this determines whether the advertisement will be construed as an invitation to treat or a unilateral contract. He would make some basic enquiries to ascertain whether there is anything faulty with the product in an attempt to seek an explanation for or understanding of the basis for the price discrepancy; he might alternatively try and ascertain whether perhaps the price differential is part of some spectacular promotional exercise. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. 12 The plaintiffs both collectively and individually maintained adamantly that while they thought that the price of $66 appeared to be a good deal they did not think that the website prices had been mistakenly placed or inserted. June Proctor, 1997, p. 13. He commenced practice in 2000 and currently practices with the law firm representing the plaintiffs in this action. The present article analyses the many important issues that are raised by what is probably the first case on Internet mistake - the Singapore High Court decision of Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594. What is urged is that, owing to a common error as to some fundamental fact, the agreement is robbed of all efficacy. I even went to both the HP Web-Site as well as the DigilandMall Web-site to see if the prices were the same. It is pertinent to note that she placed orders for 32 laser printers including 20 units she ordered on behalf of her sister. 8 The proper description of the laser printer, HPC9660A Color LaserJet 4600, was, as a result of the accident, replaced by the numerals 55; while the numerals 66 replaced the correct price of the laser printer priced at $3,854 and the numerals 77 replaced the original corporate price of the laser printer priced at $3,448. 3 All six plaintiffs are graduates, conversant with the usage of the Internet and its practices and endowed with more than an adequate understanding of business and commercial practices. The other school of thought views the approach outlined earlier with considerable scepticism. Having pointed out 6 that a court 'will generally be cautious if not reluctant to effect any amendments once the hearing has commenced; even more so once the evidential phase of the . Rajah J.C. in the Singapore High Court in Chwee Kin Keong v. Digilandmall.com Pte. Desmond: 13/01/20 01:44 if they dont honor it Scorpio: 13/01/20 01:45 sell me one lah name your price ;-) sue them lor , Desmond: 13/01/20 01:45 I think they will give vouchers or special deals. 49 Tan Cheng Pengs brief evidence did not really assist the third plaintiff. In light of this, the parties did not address me on the issue of when the contract was formed, though this appears to be a relevant issue depending on which rule is adopted. 45 The most telling aspect of the third plaintiffs evidence is his admission that he made Internet searches relating to the pricing of the laser printer, immediately after he was contacted by the first plaintiff. In the Singapore context a similar approach has been adopted by the Court of Appeal in Aircharter World Pte Ltd v Kontena Nasional Bhd [1999] 3 SLR 1 at [30] and [31], and Projection Pte Ltd v The Tai Ping Insurance Co Ltd [2001] 2 SLR 399 at [15]. The knowledge that the offer is not meant according to its literal terms simply displaces the objective theory of contract. It can however be observed that in mass mistake cases, even when there is no direct evidence as in these proceedings, the court could be prepared to pragmatically assume actual or deemed knowledge of the manifest mistake. His revelation that he did not know if this is an error or whether HP will honour this purchase, not to mention the articulation of his hope that by the time you see this email, the price is still at S$66.00 coz they might change it anytime, are all compelling in reflecting his state of mind and awareness that an error had occurred. He is 32 years old and conducts his own network marketing business. It is not in dispute that the defendant made a genuine error. In the context of its true market value the absurd price of $66 was almost the commercial equivalent of virtually giving away the laser printers. There is often, but not inexorably, a co-relationship between the timing when the amendment is sought and the adverse consequences for the other party. Given its global reach and ever changing technological advancements, Internet usage will pose a myriad of issues for resolution. He received this information through an sms message. He said he had by then discovered from his Internet searches that the price of the laser printer was in the region of $3,000. However, at the actual hearing of the applications, plaintiffs counsel opposed any amendments whatsoever to the defence and sought leave to withdraw the plaintiffs earlier unilateral amendments. A particular class of case which illustrates unilateral mistake as to the terms intended, known to the other party, is that in which an offer which would be very advantageous to the offeree is snapped up by the offeree. To determine the profit potential, the second plaintiff had to take steps to ascertain the true market price of the laser printer which he did. Borneo United Sawmills Sdn Bhd v. MUI Continental Insurance Bhd (Marine insurance - Loss of goods - Claim for loss of goods under Marine Cargo Policy) [2009] 8 CLJ 217. 83 The defendant maintained that there was no element of surprise and/or prejudice arising from the amendments. This constituted more than a quarter of the total number of laser printers ordered. The first, second and third plaintiffs have been friends for a long time and are bound by common business interests. This can be before or during the trial, or after judgment or on appeal. It had consciously not inserted any limits to the number of products a buyer could purchase again, quite clearly, to solicit more business. Websites often provide a service where online purchases may be made. When the defendants discovered this mistake on their website, they sent an email to the complainants to say they would not be fulfilling this order. Our conclusion is that it is impossible to reconcile Solle v Butcher with Bell v Lever Bros Ltd. He was also involved in initiating the Channel NewsAsia report (see [78] and [79] infra). Desmond: 13/01/20 01:47 u make me greedy, Scorpio: 13/01/20 01:47 ok lor if you insist . This contention is wholly untenable. The element of constructive knowledge based upon what a reasonable person ought to know is premised upon that person not being conscious of the error. 145 If the price of a product is so absurdly low in relation to its known market value, it stands to reason that a reasonable man would harbour a real suspicion that the price may not be correct or that there may be some troubling underlying basis for such a pricing. Unfortunately, they mistakenly offered the price at so much per pound in place of so much per piece. The decision of V.K. Keywords Contract Online Store Mistake Pricing Mistake Citation It seems to me that he was trying to tailor his evidence to fit neatly within the legal parameters of the plaintiffs case. 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. Case law chwee kin keong v digilandmallcom pte ltd. School Nanyang Technological University; Course Title ACC 1301; Uploaded By saint_huimin. He seemed to suggest that in a number of cases going as far back as, He somewhat muddied the authority of his observations by apparently accepting in, 126 The Australian courts appear to have relied on the views of Lord DenningMR in, 127 The attempt to conflate the concept of common law mistake and the equitable jurisdiction over mistake is understandable but highly controversial. Voces del tesauro. The recipients of this e-mail included the second, fourth, fifth plaintiffs and Tan Cheng Peng, the third plaintiffs girlfriend. Any information contained in this case summary does not constitute legal advice and should be treated as educational content only. 82 The plaintiffs strenuously opposed the defendants amendments principally on the ground it was made at a late juncture. This is in contrast to the English position where after several decades, 125 The principal source of this view has been Lord DenningMR. 97 Different rules may apply to e-mail transactions and worldwide web transactions. . Notwithstanding occasional failure, most e-mails arrive sooner rather than later. After the defendant intimated that it would not be delivering the laser printer, he sent an e-mail excoriating it, asserting, inter alia: Myself, and other people who have been disappointed by you decision, will definitely spread word of the companys lack of honour and integrity to everyone we know and all over the internet! So there is a contract and therefore the defendant is liable in breach of contract. The plaintiffs attempted to take advantage of the defendants mistake over the Internet. There is no doubt that the plaintiffs acted with indecent haste in the dead of the night in placing as many orders as each of them felt their financial resources credibly permitted them to do. This was also the practice in the trade. Ltd.1 has the makings of a student's classic for several rea- In the light of that consideration we can see no way that Solle v Butcher can stand with Bell v Lever Bros Ltd. In some unusual circumstances where a unilateral mistake exists, the law can find a contract on terms intended by the mistaken party. This could account for the substantial number of Canadian cases in this area of the law. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. It is an important subject for the future development of English contract law. After receiving the e-mail from the first plaintiff, he visited the relevant HP website pages. You may find the status of your order by calling us at (phone number given) Special instructions: Please call to advise delivery date and time. The rigour in limiting this scope is also critical to protect innocent third party rights that may have been acquired directly or indirectly. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. Chwee Kin K eong and others . The plaintiffs and the defendant later reached an agreement to dispense with any further oral evidence, save for that of Tan Cheng Peng. 51 The fourth plaintiff received a phone call from the second plaintiff at about 2.00am, informing him that there was money to be made through the purchase of laser printers. It is set in the context of internet contracting. He appeared to be consummately familiar with Internet practices and was forced to concede that he thought it was weird and unusual when he saw the number 55 on the relevant webpages in place of the actual product description. The law of mistake has generated its own genre of mistakes and obfuscation. 69 The sixth plaintiff was awakened by his brother, the third plaintiff, at about 3.00am. There could be different considerations. There can be no other reasonable explanation. Though he initially denied this in cross-examination, he had to accept this when confronted with his own e-mail as irrefutable evidence. . Civil Procedure Pleadings . Desmond: 13/01/20 01:41 u want it for profit or personal use? A contract will not be concluded unless the parties are agreed as to its material terms. 26 It is clear from the priority status accorded to the e-mail that the first plaintiff was sharing his knowledge of a good deal. Basic principles of contract law continue to prevail in contracts made on the Internet. In this case we have heard full argument, which has provided what we believe has been the first opportunity in this court for a full and mature consideration of the relation between Bell v Lever Bros Ltd [1932] AC 161 and Solle v Butcher. 29 The first plaintiff struck me as an opportunistic entrepreneur. She opined that situations where unilateral mistake had been considered were those involving fraud or a very high degree of misconduct. After hearing their evidence, observing them and considering the submissions made on their behalf, there was no doubt in my mind that they were fully conscious that an unfortunate and egregious mistake had indeed been made by the defendant. Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 Chapelton v Barry UDC [1940] 1 KB 532 Chaplin v Hicks [1911] 2 KB 786 Chappell v Nestl [1960] AC 87 Chwee Kin Keong v Digilandmall.com [2006] 1 LRC 37 CIBC Mortgages v Pitt [1994] 1 AC 200 - Undue . In fact, he and the fourth plaintiff have jointly conceptualised and implemented an Internet-related business. There must be consensus ad idem. In this case, Defendant was selling IT products over internet in Singapore. They proceeded to file their amendments to the statement of claim as if leave had already been given. Yet in other aspects, he could recollect, with crystal clear precision and clarity, details of what had transpired. 87 It appeared to me that the extract from Singapore Civil Procedure 2003 relied on by the plaintiffs was blindly lifted from earlier editions of the English White Book without any consideration as to how it dovetails with the present procedural climate. The essence of unilateral mistake is the knowledge or deemed knowledge of a mistake and though fraud may often be present it is not an essential ingredient. Having said that, this exception must always be prudently invoked and judiciously applied; the exiguous scope of this exception is necessary to give the commercial community confidence that commercial transactions will almost invariably be honoured when all the objective contractual indicia are satisfied. In Chwee Kin Keong and ors v Digilandmall.com Pte Ltd, 5 VK Rajah JC, as His Honour then was, decided against the rule-based approach in Moss v Malings. The question is what is capable of displacing that apparent agreement. There are persuasive arguments against extending the litmus test of unconscionability to all mistake-type situations. Upon accessing the Digilandmall website and confirming that the printer was offered there at $66 as well, he placed a further order for 25 laser printers through that website at about 3.29am. Their He said that he wanted to be sure that the offer on the HP website was genuine. If coherence is to be restored to this area of our law, it can only be by declaring that there is no jurisdiction to grant rescission of a contract on the ground of common mistake where that contract is valid and enforceable on ordinary principles of contract law. A prospective purchaser is entitled to rely on the terms of the web advertisement. In any event, it does not appear that she disclosed the whole truth of what she knew. This assertion is patently untrue. 86 In cases where the facts raised in the proposed amendments have been addressed during the evidence and submissions and, particularly, where the opposing side has also had an opportunity to address the very same points, there can hardly ever be any real prejudice. I do not accept that there were no discussions between them on the price posting being an error. To export a reference to this article please select a referencing stye below: This selection of essays, case summaries and dissertations is of relevance to law students within the Commonwealth and for those students who are studying the Rule of Law from outside the Commonwealth . The caption in each of the e-mails Successful Purchase Confirmation from HP online says it all. This is a matter perhaps best left to law reform rather than to incremental judge-made law which may sow the seeds of confusion and harvest the returns of uncertainty. The terms of the offer are clear and unambiguous and the offeree accepts the offer according to its true sense, Although a mistaken party will not often be able to discharge the onus of showing that the other party, 118 The Canadian courts have been the most active common law courts explicating and developing this area of the law. The complainants argued that they were not aware that this price was a mistake and wanted the binding contract to be fulfilled. They are all well-educated professionals articulate, entrepreneurial and, quite bluntly, streetwise and savvy individuals. I cannot accept that. He is currently self-employed and is intimately involved in the multi-level marketing sales of aromatherapy products under the Bel-Air label. 140 The defendant has however properly asserted that there was a unilateral mistake that vitiated all the contracts. 63 It is pertinent he too made web searches using the Google search engine. There was no element of surprise or prejudice to the plaintiffs as the points raised had already been developed by the defendant and addressed by the plaintiffs. When pressed why he asked MsToh to do this research, the fifth plaintiffs response was unsatisfactory. The reason for this inconsistent conduct surfaced later. 40 When the fourth plaintiff responded to the first plaintiffs mass e-mail, he copied his response to the second plaintiff. 128 The most significant judicial pronouncement supporting this view emanates from the recent English Court of Appeal in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679, a case of common mistake. 6 On Wednesday, 8January 2003 between 3.00pm and 4.00pm, DILs employees conducted a training session at the defendants premises. Chwee Kin Keong and Others v Digilandmall.com Pte Ltd [2005] SGCA 2 Civil Procedure Costs , Civil Procedure Pleadings , Contract Mistake Decision Date: 13 Jan 2005 . In the eyes of Singapore law, purported contracts entered into in similar circumstances are void ab initio. He is described by his counsel in submissions as a prudent and careful person. 134 It is not really in issue that contracts can be effectively concluded over the Internet and that programmed computers sending out automated responses can bind the sender. 135 The defendant however asserts that there were no concluded contracts with any of the plaintiffs on a number of grounds. He appears to have been in constant communication with the second plaintiff and to have received and read the mass e-mail from the first plaintiff after he placed his first purchase order. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. Despite the general views expressed in Taylor v Johnson (1983) 151CLR 422 on equitable mistake, it seems to be generally accepted in Australia as well, that this class of cases requires special mention and consideration. The price of the laser printer, prior to 3.36pm on 8January 2003, was stipulated as $3,854 (exclusive of GST) on both the Digilandmall and HP websites (the websites), and as $3,448 on the Digiland commerce website. The issue in this case was whether the pricing was a mistake and if the contract would be fulfilled. The second, third, fourth and sixth plaintiffs are the only individuals who ordered more than a hundred laser printers each. The defendant, Digilandmall.com Pte Ltd, were an online IT company that sold related software and hardware from Singapore. We can understand why the decision in Bell v Lever Bros Ltd did not find favour with Lord DenningMR. An equitable jurisdiction to grant rescission on terms where a common fundamental mistake has induced a contract gives greater flexibility than a doctrine of common law which holds the contract void in such circumstances. Pginas: 93: High Court - Suit n 202 of 2003. The product descriptions in all the other pages of the respective websites, at the material time, carried a full detailed description of all advertised products. The same view is echoed in Halsburys Laws of Singapore vol7 (Butterworths Asia, 2000) at [80.164]. Both parties expressed that they wished to effect amendments to mirror evidence that had been adduced in the proceedings. It appears to suggest that even if an offer is snapped up, the contract is not void. Someone referred me to the HP website which shows the price of this HP Colour LaserJet 4600 Series as S$66.00. Articles 11 (1) Country Singapore. On any objective construction, the presumed intention must be that in the context of its confirmatory content, the words call to enquire in the availability portion of the contract related to the timing of the delivery rather than being subject to physical availability of the laser printer or stock. The businessmen saw a great opportunity and grabbed it placing an order for 1,000 printers. 111 In Chwee Kin Keong v Digilandmall.com Pte Ltd [2005] 1 SLR(R) 502 ("Chwee Kin Keong"), this court said at [101]: Under O 20 r 5(1) of the Rules of Court (Cap 322, R 5, 2004 Rev Ed), the court may grant leave to amend a pleading at any stage of the proceedings. When giving evidence, he struck me as cautious, taking great pains to convey the impression that his numerous online enquiries that morning were routinely carried out without any real inkling that an error had occurred. 113 The English Court of Appeal in Commission for the New Towns v Cooper (Great Britain) Ltd [1995] Ch 259, a case of common mistake, imported the concept of Nelsonian knowledge and applied the framework of various categories of knowledge outlined by Peter GibsonJ in Baden v Societe Generale pour Favoriser le Developpement du Commerce et de lIndustrie en FranceSA [1993] 1 WLR 509. Two issues had arisen. COOTE, B. The prospective buyer has to make an offer to purchase which is then accepted by the merchant. Has an agreement been reached or not? Registered office: Creative Tower, Fujairah, PO Box 4422, UAE. Chwee Kin Keong vs Digilandmall.com 77 Soon after the defendant informed the plaintiffs that they did not intend to deliver the laser printers, the plaintiffs took their claims to the press. He acknowledged having had conversations with the other plaintiffs about how much money we can sell the printer and how much we can make and about storage space as well as how many units we intend to buy. [emphasis added]. 117 It should be emphasised that this stream of authority is consistently recognised by all the major common law jurisdictions. If the common law continues to take precedence, then an essential mistake would void a contract ab initio. 60 Prior to placing his order, he was again contacted by the second plaintiff. ThompsonJ of the Ontario High Court applied Hartog v Colin & Shields ([115] supra) and held that the parties were not ad idem and found that no contract had been formed. Chwee Kin Keong v Digilandmall.com Pte Ltd [2004] 2 SLR 594; [2004] SGHC 71. There was also no indication that the product was being sold on promotion. The following excerpt is particularly significant and compelling: 23 The subsequent exchange further clarifies that the first plaintiff was fully conscious of the potential profit element arising from the purchase of a substantial number of the laser printers. He subsequently sent the web link to the Epinions website to the first and second plaintiffs. In terms of chronological sequence, the initial page accessed was the shopping cart, followed by checkout-order . 33 After his first order, the second plaintiff contacted the fourth and fifth plaintiffs informing them about the laser printers. In his initial affidavit he admitted wondering whether the price was a mistake after his first order was placed. 68 Yeow Kinn Oei is 29 years old and the brother of the third plaintiff. Unilateral Mistake at . Rules of court which are meant to facilitate the conduct of proceedings invariably encapsulate concepts of procedural fairplay. I must add that I did not really think this was necessary and subsequent events confirmed my perception. Indeed, in difficult cases, the courts in several common law jurisdictions have gone to extraordinary lengths to conjure up consideration. The affidavits did not add anything new. To that extent, his evidence that he subsequently dismissed the notion altogether is unacceptable. Chwee Kin Keong and others v. Digilandmall.com Pte Ltd. [2004] SGHC 71. Though the six plaintiffs accounted for only 18 of these purchase orders, they figure prominently among the 11 individuals who ordered more than 50 laser printers. Phang, Controversy in Common Mistake [2003] Conv 247; Reynolds, Reconsider the Contract Textbooks (2003) 119LQR 177. 33 See the Singapore Court of Appeal decision of Chwee Kin Keong v Digilandmall.com Pte Ltd[2005] 1 SLR 502 (noted by Yeo, TM ' Great Peace: a distant disturbance ' (2005) 121 Law Quarterly Review 393 Google Scholar; KFK Low 'Unilateral mistake at common law and in equity' [2005] Lloyd's Maritime and Commercial Law Quarterly 423; and PW .
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